U.S. v. De Gross, 87-5226

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Citation960 F.2d 1433
Docket NumberNo. 87-5226,87-5226
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Juana Espericueta DE GROSS, Defendant-Appellant.
Decision Date02 April 1992

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960 F.2d 1433
60 USLW 2639
UNITED STATES of America, Plaintiff-Appellee,
Juana Espericueta DE GROSS, Defendant-Appellant.
No. 87-5226.
United States Court of Appeals,
Ninth Circuit.
Argued En Banc and
Submitted Sept. 26, 1991.
Decided April 2, 1992.

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Edmundo Espinoza, San Diego, Cal. on brief, for defendant-appellant.

William Braniff, U.S. Atty., San Diego, Cal., for plaintiff-appellee.

Judy Clarke, McKenna & Cuneo, Mario G. Conte and Sara Rapport, Federal Defenders of San Diego, Inc., San Diego, Cal., for amicus curiae Nat. Ass'n of Crim. Defense Lawyers.

Betty Wheeler, ACLU Foundation of San Diego, San Diego, Cal., for amicus curiae American Civil Liberties Union.

Appeal from the United States District Court for the Southern District of California.


WIGGINS, Circuit Judge:

A jury convicted Juana Espericueta De Gross of aiding and abetting the transportation of an alien within the United States. De Gross appealed her conviction. A panel of this court reversed her conviction. 913 F.2d 1417. The panel's judgment was vacated, however, by our decision to rehear this case en banc. 930 F.2d 695. Now, after supplemental briefing and argument by the parties and by amicus curiae, we once again determine to reverse the judgment of the district court.


De Gross pled not guilty to three counts of aiding and abetting the transportation of an alien within the United States. During voir dire, the government objected to De Gross' peremptory challenge of Wendell Tiffany, a male venireperson. At that point, De Gross had peremptorily struck 1

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seven male venirepersons. The government argued that this pattern of striking males established De Gross' discriminatory intent to exclude male venirepersons in violation of their constitutional rights to equal protection of the laws. The district court ruled that the government had established a prima facie case of purposeful discrimination, and required De Gross to justify her challenge. De Gross offered no explanation. The court then disallowed her peremptory challenge of Tiffany.

De Gross also made an equal protection objection during voir dire. De Gross objected to the government's challenge of Herminia Tellez, a Hispanic woman. Tellez was then the only Hispanic on the venire. 2 The district court ruled that De Gross established a prima facie case of discrimination, and required the government to justify its challenge. Government counsel responded that his main reason for challenging Tellez was to achieve "a more representative community of men and women on the jury." 3 The court accepted the government's explanation and struck Tellez.

The impaneled jury, consisting of three men, including Tiffany, and nine women, convicted De Gross of the crimes charged. De Gross timely appealed.


Whether equal protection principles prohibit a party from peremptorily striking venirepersons on the basis of gender is a question of law that we review de novo. United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).


I. De Gross' Challenge of Tiffany

De Gross argues that the district court erred in denying her peremptory challenge of Tiffany, a male venireperson. At trial, the government had objected to De Gross' challenge on the ground that De Gross exercised it with discriminatory intent, and therefore, if the district court struck Tiffany, it would violate Tiffany's equal protection rights. We first must decide whether the government has standing to make this objection. If so, we must decide whether equal protection principles prohibit a criminal defendant from peremptorily striking a venireperson on the basis of gender. If equal protection principles do prohibit such conduct, we must decide finally whether De Gross did exercise her peremptory challenge with discriminatory intent.

A. The Government's Standing to Object to De Gross' Peremptory Challenge

De Gross argues that the government lacks standing to object to her use of peremptory challenges. The government argues that it has standing based on its own injury and the injury to the venirepersons challenged. We find both of the government's arguments persuasive.

Discriminatory practices in jury selection "cast[s] doubt on the integrity of the whole judicial process. They create the appearance of bias in the decision of individual cases, and they increase the risk of actual bias as well." Peters v. Kiff, 407 U.S. 493, 502-503, 92 S.Ct. 2163, 2168, 33 L.Ed.2d 83 (1972). The exclusion of cognizable groups from jury service limits community participation in the administration of the criminal justice system--participation which is "critical to public confidence in the fairness" of the system. Taylor v. Louisiana, 419 U.S. 522, 530, 95 S.Ct. 692, 698, 42 L.Ed.2d 690 (1975).

As administrator of the criminal justice system, the government has an interest

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in having its criminal prosecutions tried before a tribunal most likely to produce a fair result. Singer v. United States, 380 U.S. 24, 36, 85 S.Ct. 783, 790, 13 L.Ed.2d 630 (1965). Thus, when a criminal defendant attempts to achieve a jury partial to her through discriminatory peremptory strikes, the government suffers injury. We view this injury as sufficient to confer standing upon the government to object to the defendant's challenge.

Furthermore, the government has standing to object to a defendant's discriminatory peremptory challenge by asserting the equal protection rights of the venireperson sought to be excluded. Ordinarily, a party does not have standing to assert the legal rights or interests of another. Powers v. Ohio, --- U.S. ----, 111 S.Ct. 1364, 1370, 113 L.Ed.2d 411 (1991). There are, however, limited exceptions. A party may raise a third party's rights or interests when (1) the party asserting the rights has suffered an injury in fact, giving him a sufficiently concrete interest in the outcome of the litigation, (2) there is a sufficiently close relationship between the litigant and the person whose rights are being asserted so that the litigant will be an effective proponent of the rights being litigated, and (3) there is some hindrance to the third party's ability to protect his own interests. Id. 111 S.Ct. at 1370-1372. Using these three criteria, Powers established that a criminal defendant has standing to raise the equal protection rights of a juror who was improperly excluded even if the defendant is not of the same racial group as the juror. Id. at 1373.

In Powers, the Court held that the defendant had standing because the defendant is actually injured by the improper exclusion. Racial discrimination in the jury selection process casts doubt on the integrity of the judicial process and the fairness of the criminal proceeding. Id. at 1371. Second, the defendant will be as effective at advocating the juror's rights as the juror himself would be because both have a common goal in eliminating racism, and the defendant will be motivated by the possibility of reversal of a conviction. Id. at 1372. Finally, the excluded juror is unlikely to have the opportunity or incentive to vindicate his or her own rights. Id. at 1372-73.

This reasoning is equally applicable when the government asserts standing to raise the equal protection rights of improperly excluded jurors. First, as we have stated above, violation of the venireperson's rights injures the government by impugning the jury system.

Second, the government's relationship to the venireperson is sufficient to ensure that it will vigorously defend his rights. See Singleton v. Wulff, 428 U.S. 106, 114-15, 96 S.Ct. 2868, 2874, 49 L.Ed.2d 826 (1976). The government has a direct interest in protecting the rights of its citizens, including potential jurors. Additionally, the government has an interest in a venireperson's perception of the fairness and impartiality of the criminal justice system.

Finally, several obstacles hinder an excluded venireperson from asserting his own rights. See id. at 115-16, 96 S.Ct. at 2874-75. The venireperson may not be aware that he has been discriminated against. Such discrimination may not become apparent until a number of similarly situated venirepersons have been struck. Also, although the racially excluded juror may bring a challenge on his or her own behalf, 4 the reality is that such suits are rarely brought. Powers, 111 S.Ct. at 1372. "The barriers to a suit by an excluded juror are daunting." Id. at 1373. There are numerous procedural difficulties. Additionally, there is little incentive because of the small financial stakes and the expense of litigation. Id. Thus, the improperly excluded juror effectively lacks a remedy for his unconstitutional exclusion from the trial.

We therefore conclude that the government has standing to object to De Gross' peremptory challenge of Tiffany under these circumstances.

B. Gender-Based Peremptory Challenges

In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the

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Supreme Court held that the Equal Protection Clause of the Fourteenth Amendment prohibits a prosecutor from peremptorily striking a venireperson on the basis of his race. Equal protection principles forbid racially discriminatory peremptory strikes, in part because racial discrimination during jury selection (1) harms the excluded venirepersons, (2) undermines public confidence in the judicial system, and (3) stimulates community prejudice. Id. at 87, 106 S.Ct. at 1718. Because all of these evils also result from peremptory strikes based on gender, the Fifth Amendment's equal protection principles 5 compel us to prohibit peremptory strikes on the basis of gender. 6

A prosecutor's sexually discriminatory peremptory strike also violates the...

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